IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111004

Docket: M130302

Registry:
New Westminster

Between:

Teodor Dobre

Plaintiff

And

Leanne Langley and
John Langley

Defendants

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

Background

[1]            
Mr. Dobre, the twenty-year-old plaintiff, was injured in a car-bicycle
accident on July 14, 2008. His most serious injury was a right thumb Bennett
fracture. This involves a fracture of the base of the thumb where it joins the
wrist joint. It was an intra-articular fracture, which means the breakage
involved the joint surfaces. This injury continues to cause him problems. He
suffered some other injuries as well. He quickly recovered from his scrapes and
bruises but continues to suffer neck and upper back symptoms that the defendant
says are unrelated to the accident.

[2]            
Ms. Langley, the thirty-year-old defendant, denies responsibility for
Mr. Dobre’s injuries. She drove her Toyota Matrix into the rear wheel of a
bicycle the plaintiff was riding south across a crosswalk that was identifiable
by the usual painted stripes, a large overhead pedestrian warning sign and
several flashing amber lights that anyone can activate before they cross the
intersection.

[3]            
At impact, the front wheel of the bicycle was starting to near the
centre dividing line of Martin Drive in Surrey, British Columbia, at its T-intersection
with Southmere Crescent East (“Southmere”). Southmere is the axis of the T-intersection
and runs off to the north.

[4]            
At the time of the accident, Ms. Langley was driving her Toyota Matrix
around 50 kph in a southwesterly direction in the lane closest to the centre
line on Martin Drive. Martin Drive has four lanes, two running easterly and two
westerly, that curve at the intersection.

[5]            
Ms. Langley was driving alone at the time of the accident. It was a
sunny summer day at around 6:18 pm. She had no cell phone or radio on to
distract her and nothing obscured her windshield. She had a clear view ahead as
she drove towards the nearby grocery superstore to shop.

[6]            
As she was approaching the intersection, about eight seconds before
impact, Mr. Dobre was riding south on the east side of Southmere, towards what
was to become the point of impact. He was heading to a McDonalds on the other
side of the road for lunch. He was wearing a dark T-shirt and shorts. He was
not wearing a bicycle helmet. He did not know about the law saying he had to
wear one. Though he had emigrated with his parents and sister from Romania as
recently as May 2007, he speaks English very well.

[7]            
He rode his sister’s bike southward on the east side of Southmere towards
the intersection with Martin Drive, slowing as he approached it. The plaintiff
testified he stopped and, straddling the bike, pushed a large button on a pole
by the curb to activate the four flashing amber crosswalk lights. Two sets of
amber lights hung across Martin Drive facing east and west. Two others were
fastened to poles at the sides of the road. A standard issue black and white
pedestrian crosswalk sign hung above the crosswalk as well. Because Mr. Dobre
lived nearby on Southmere, he knew the intersection and the amber light warning
system well. The plaintiff also testified he looked both west and east just
before he pushed the button and noticed the defendant’s car approaching the
intersection to his left, still a good distance from him, perhaps as far away
as 152^nd Street in his estimation. At that distance, he said was
unconcerned about the car and expected the driver would see the flashing
crosswalk lights.

[8]            
Mr. Dobre understood pushing the pedestrian button would immediately
activate the flashing lights. He did not check to see if they had actually come
on after he pushed the button.

[9]            
Mr. Dobre thought it took him about 5 to 10 seconds to stop at the
intersection, straddle his bike, push the pedestrian button, remount his bike
and enter into the intersection. Mr. Dobre testified he was moving slowly as he
entered the intersection, having just mounted the bicycle again and was not
trying to pedal hard. As he had assumed the warning lights would be flashing
and the oncoming defendant would see him, he had not checked the position of
the defendant again before entering the crosswalk or while he was crossing it.

[10]        
The defendant, unfortunately, never saw Mr. Dobre enter the crosswalk,
or at any other time before impact. She never braked or took evasive action of
any kind. Mr. Dobre testified he managed to see the front of the defendant’s
Toyota Matrix briefly before impact, when it was about a metre away. I find
that his estimate on this point must be wrong because he would need more than
one metre of distance between him and the Matrix to complete the few short
pedal strokes that moved his body directly out of harm’s way, leaving just the
rear tire of his bike exposed. The defendant saw none of this activity in front
of her car; only after impact did she realize she had hit someone. She then
looked left to see Mr. Dobre lying on the road near the south curb of Martin
Drive. Fortunately, the defendant’s car did not directly strike Mr. Dobre’s
body. The impact, however, sent him flying high into the air. His hands outstretched
to cushion his landing, he landed face down on the pavement. This kind of
injury mechanism – hands outstretched in front when
falling –  is commonly
associated with Bennett fractures.

[11]        
The parties each filed professional engineer expert reports. Mr. Ising,
called by the defendant, based his opinions on the assumption Mr. Dobre rode
his bicycle at 17 kph off the sidewalk right onto the crosswalk without
stopping.

[12]        
Mr. D. Rempel, a professional engineer called by Mr. Dobre, challenged
Mr. Ising’s opinion Ms. Lang would not have recognized Mr. Dobre as a hazard
until he had entered the crosswalk. Mr. Rempel testified if the theory proposed
by the defendant – that Mr.
Dobre rode his bicycle into the crosswalk at 17 kph without stopping at the
sidewalk – is accepted, then it
still follows that as Mr. Dobre approached the north entrance to the crosswalk,
he would have remained within the defendant’s sightline for about 2.7 seconds
prior to entering the crosswalk. Adding to that number the time he would be in
the defendant’s sightline while riding in the crosswalk before impact, this
means Mr. Dobre would have been in the defendant’s sightline for a grand total
of 3.5 seconds. This generally corresponds with the defendant’s admission that
a bicyclist approaching Martin Drive from the north on the east sidewalk of
Southmere would have been visible to her after their clearing of the southernmost
point of the medium height hedge that lines the sidewalk on Southmere. According
to the defence theory, however, until Mr. Dobre had entered the crosswalk, Ms.
Lang would not have recognized him as a hazard. Mr. Rempel also challenged the theory
of the defendant on the grounds it does not factor in Mr. Dobre’s evidence he
pedalled slowly after he entered the crosswalk.

[13]        
Despite considerable research, the science of hazard recognition remains
unsettled. Given all the amorphous potential variables, this is not surprising.

[14]        
Mr. Rempel’s extensive cycling experience in urban settings somewhat
enhance his professional qualifications. He was familiar with research cited by
Mr. Ising.

[15]        
I found neither engineer was a partisan witness.

[16]        
In Mr. Rempel’s opinion, most drivers seeing a bicyclist moving at 17
kph on a sidewalk and nearing an intersection like Martin Drive and Southmere would
recognize the potential for a collision and respond by braking. The underlying
premise is that most drivers would recognize a bicyclist traveling towards a
crosswalk at that speed would be unable to stop their bicycle in time at the edge
of the curb. Most drivers would therefore probably react by applying their
brakes and, before reaching the crosswalk, skid to a stop and avoid a collision.

[17]        
Should the defendant persuade me Mr. Dobre was travelling at 17 kph and
entered the crosswalk without stopping, Mr. Dobre urges me to find he was still
a recognizable hazard. He says the defendant still had enough time to detect
his presence, recognize him as a hazard and stop in time. Her failing to see
him until after impact shows, he says, she was not paying attention. Mr. Dobre
stresses that with just a few short hard pedal strokes, he had almost managed
to get out of the defendant’s way. Allowing for the short stopping distance of
a modern car in the hands of a reasonably attentive driver, Mr. Dobre argues
that had the defendant made just a modest attempt to avoid him, she could have
avoided hitting his bike. He submits, therefore, the defendant’s
inattentiveness remains the sole cause of the accident.

[18]        
Using PC Crash, a computer program, Mr. Rempel prepared an
animation showing the defendant’s view as she approached the intersection. The
animation assumes the defendant’s theory that Mr. Dobre rode right onto the
crosswalk without stopping. Mr. Dobre presented the animation to show the
defendant’s sightlines as she approached the crosswalk, as well as the speeds,
time and distances of both parties as they each moved toward the point of
impact. The speeds, times and distances Mr. Rempel used were taken from Mr.
Ising’s report. Mr. Rempel visited the accident scene to make sure the
defendant’s sightlines matched what the animation showed. He did not
incorporate into the animation a line of evergreens running along the west side
of Southmere. Because the very late afternoon sun that day could have been
shining behind the evergreens, their backlit shadows arguably made Mr. Dobre
less visible to westbound traffic. The defendant suggested the animation did
not, therefore, give a fair representation of the defendant’s view.

[19]        
A voir dire on its admissibility gave the defendant opportunity
to cross-examine Mr. Rempel on whether the animation truly represented the
scene and the player’s movements of the parties. I decided Mr. Rempel had
incorporated the essential elements of the defendant’s theory and adequately
represented the defendant’s basic sightlines. As for the line of missing
evergreens, a photograph showing them at roughly the same equinox and time of
day was in evidence; and I find their absence from the scene does not detract
from the representative accuracy of the time and distance animation to warrant excluding
it. I found the animation to be an instructive demonstration of the defence
theory and of the times and diminishing distances separating the parties as
they moved to impact.

[20]        
The defendant called an accident witness, Jason D. Low. Mr. Low is a
driving program instructor who lives two blocks from where the accident
occurred. Mr. Low testified that at around 6:00 p.m. on the day of the
accident, with the sun still shining, he was walking westbound on the north
side of Martin Drive. He saw Mr. Dobre, whom he did not know, riding his bike
southbound on Southmere at a slow steady pace. He thought Mr. Dobre was riding
somewhere in the range of 50 to 110 feet to the west of him and about 20 feet
north of the crosswalk. Shown a photograph of the scene at page 3 of Exhibit 1,
he pointed to the space between the street light pole and the hedge on the east
sidewalk on Southmere, identifying it as the spot where he first noticed Mr.
Dobre riding his bicycle. The space looks to be about 5 metres or so from the
curb, which roughly corresponds to Mr. Low’s own estimate. When Mr. Low first
noticed Mr. Dobre, he could not say whether Dobre was slowing. As Mr. Dobre approached
the curb, Mr. Low had looked away towards some condominium gardens on his right
for up to 5 or 6 seconds. He could not say if Mr. Dobre had stopped at the
curb, or anything about what he might have done there. This gap in his
observations makes sense as Mr. Low had been looking away for up to 5 or 6 seconds.
After those few seconds had passed, Mr. Low said he looked towards Mr. Dobre again,
at which point he saw him struck into the air.

[21]        
From his vantage point on the sidewalk, Mr. Low said he had no
difficulty seeing Mr. Dobre. However, he was not looking at the crosswalk lights
at any time and could not say if he saw them on or not.

[22]        
He saw no evidence of evasive action on the part of the defendant such
as the illumination of brake lights.

[23]        
Ms. Lang testified she did not see any flashing pedestrian warning
lights as she approached the intersection.

Did the plaintiff activate the pedestrian crosswalk flashing lights?

[24]        
As mentioned, Mr. Dobre testified he pushed the button that activates
the crosswalk warning lights before looking east and west and entering the
crosswalk.

[25]        
 Mr. Dobre testified that as soon as someone pushes the activation button,
the lights start to flash. He never checked, however, to make sure they had actually
come on before moving forward. The pole on which the button is located is about
1½ metres off centre from the disability ramp that leads down off the curb to
the crosswalk. He could not recall noticing the ramp. The quickest way to get
onto the crosswalk from where the pole is located would be to ignore the
disability ramp and just drop off the curb at a slight angle and then onto the
crosswalk. Then he would have needed to straighten his path forward as he
remounted the bike and pedalled across the crosswalk. I do not see how Mr.
Dobre’s use or non-use of the disability ramp to enter the crosswalk affects
either way the credibility of his evidence that he pushed the button.

[26]        
I accept Mr. Dobre looked both ways before pushing the button and
starting across the intersection. Combining in some order the process of
checking for oncoming traffic and pushing the button is a natural enough
progression, especially for someone familiar with the intersection and knowing
where and how to activate the flashing lights. Mr. Dobre presented as a
credible witness. He is also, of course, an interested one. But I found his
testimony, considered as a whole, reliable. There were no notable exaggerations
or troubling inconsistencies in it.

[27]        
Ms. Lang also left a good impression as a witness. She did not try to
excuse her inattention. I accept she does not recall seeing flashing lights as
she approached the intersection, but that does not go far enough to deflect Mr.
Dobre’s credible assertion he activated them. Her evidence on this point
deserves considerable weight, but her failure to see Mr. Dobre before impact
substantially weakens it. Only after she realized she had struck something did
she become aware of his presence. As she was completely oblivious to his
presence until after impact, she was just as likely to miss seeing the lights.
Whatever the reason for her momentary lapse, I find Ms. Lang was not
consciously aware of the significant objects and activities in her path. In
short, her evidence regarding the lights is sincere, but in the circumstances,
not reliable.

[28]        
Mr. Low did not see the lights either. He was not watching Mr. Dobre for
up to six seconds after last paying any attention to him near the curb, where
he would have been in a position to activate the crosswalk lights. And, after
he next saw Mr. Dobre flying through the air, one would naturally expect Mr.
Low to focus all his attention on what he had just seen and then on his actions
during the aftermath of the accident, such as speaking to the parties.

[29]        
I accept Mr. Dobre’s testimony he pushed the button that activated the
lights. I have not overlooked the possibility Mr. Dobre failed to push the
button hard enough to activate the lights, but such an occurrence is too
speculative and intangible to factor into the balancing of the evidence before
me.

[30]        
Considering the animation demonstration, the professional opinion
evidence and the evidence as a whole, I find Mr. Dobre was a recognizable
hazard to oncoming traffic before he entered the crosswalk. I further find, in
adopting for now the defendant’s theory of Mr. Dobre’s actions, that a driver
in Ms. Lang’s position, exercising reasonable care, could have avoided impact
with the rear wheel of Mr. Dobre’s bicycle.

Legal Principles and Analysis

[31]        
The basic principles in a case such as this are obviously well known.
For the parties’ benefit, I will relate them in plain words.

·      
Each person has a duty to look out for others and to take
reasonable care that their own actions do not cause others foreseeable harm.

·      
Each person has a reciprocal duty to take reasonable steps to
look out for their own safety.

·      
The degree of care the law expects a person to exercise in a
given situation is proportionate to the risks the actors knew about or should
have known about, considering all of the relevant circumstances. The greater
the risks associated with the activities involved, the greater the degree of
care required.

·      
Where a judge finds the careless actions of more than one actor,
including the injured party, were causes of a person’s harm, the judge can
apportion responsibility between them on a percentage basis that reflects the
relative blameworthiness of the parties.

·      
Even if a judge finds a defendant wholly responsible for the
accident’s occurring, they may still reduce the plaintiff’s damages because the
plaintiff failed to exercise reasonable care for his or her own safety by
taking steps that would have avoided or reduced his or her injuries, such as
having failed to wear a seatbelt or a bicycle helmet.

·      
The Motor Vehicle Act, R.S.B.C., c. 318 [Motor Vehicle
Act], lays down specific rules of the road to regulate the use of highways
and crosswalks by motor vehicles, bicyclists and pedestrians. The provisions of
the Motor Vehicle Act reflect older common law rules, modified and
expanded to reflect the demands of modern traffic.

·      
The standard of care expected of a driver is not perfection, but
whether they acted as an ordinarily prudent person would act: Hadden v.
Lynch, 2008 BCSC 295, 165 A.C.W.S. (3d) 759 at para. 69 [Hadden].

[32]        
Section 183 of the Motor Vehicle Act sets out the duties of a
cyclist, who, in addition to the specific duties set out in s. 183, also shares
the same rights and duties with drivers of a motor vehicle: see also Friedrich
v Shea, 2008 BCSC 1243, 49 M.P.L.R. (4^th) 63 at para 29.

[33]        
Section 184 of the Motor Vehicle Act requires bicyclists to wear
a protective helmet when cycling.

[34]        
It is s. 183(2)(b) of the Motor Vehicle Act that obligates bicyclists
intending to cross a highway at a crosswalk to dismount and walk their bike
across it. Mr. Dobre’s failure to dismount and cross the intersection on foot
means he does not meet the definition of a “pedestrian” set out in s. 119 of
the Motor Vehicle Act. He thus loses the statutory right-of-way that his
crossing on foot would have given him. As briefly touched on earlier, the
defendant still owed Mr. Dobre a general legal duty of care that Mr. Dobre,
through proving he was a recognizable hazard and that his actions had left the
defendant with enough time and distance to see and avoid striking him, has shown
she failed to discharge by her failing to keep an adequate lookout: Kerr v.
Creighton, 2007 BCSC 208, 155 A.C.W.S. (3d) 481 at paras. 45, 56 and Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450, [1952] S.C.J. No. 56 (S.C.C.).
As noted, I have found Mr. Dobre discharged that burden.

[35]        
 The principle of negligence law that the greater the risk, the greater
the need for care, is a trite but important one. Both parties, each pointing to
two different cases, rely on it. Mr. Dobre relies on Niitamo v. Insurance
Corporation of British Columbia, 2003 BCSC 608, 16 B.C.L.R. (4^th)
276 [Niitamo]. A helmetless Niitamo was riding his bicycle at night
across the well-lit intersection at 140^th Street and Fraser Highway
in Surrey, British Columbia. The defendant turned right at the intersection and
struck him in the crosswalk. The judge found Niitamo was not a “pedestrian” as
defined by s. 119 of the Motor Vehicle Act. I assume this was because Niitamo
had not dismounted and walked, but instead rode across the crosswalk. Niitamo
argued in the alternative that the motorist owed him a general duty of care. In
response to this submission, the judge cited the case of Ivanoff v.
Bensmiller, 2002 BCCA 173, 167 B.C.A.C. 243, in which the plaintiff at the
time of the collision was cycling on the wrong side of the road facing oncoming
traffic; a place where the defendant motorist would not expect to find him. Distinguishing
the circumstances in Ivanoff from those of the plaintiff in Niitamo,
the judge stated this at paras. 22-23:

[22] … However, unlike the
plaintiff in the Ivanoff case, supra, Mr. Niitamo was not in a place where it
could reasonably be said that a motorist ought to be surprised by his presence.
On the contrary, a marked crosswalk is precisely the place where a motorist
could reasonably expect to encounter another user of the road. In my view, in
approaching a marked crosswalk in anticipation of crossing through it, a
motorist assumes a heightened duty to take extreme care and maintain a vigilant
lookout for those who might be in the crosswalk. It is clear from Ms. Wheeler’s
evidence that the plaintiff was in the well-lit crosswalk and ought to have
been seen by a cautious motorist ahead of time. He was riding at a
"regular pace". There was no evidence to indicate that the motorist
attempted to brake or swerve out of the way just prior to striking Mr. Niitamo.
Nor did the motorist stop after the collision even though the impact made a
loud sound. The evidence suggests that the motorist was oblivious to the
presence of Mr. Niitamo.

[23]      For his part, Mr.
Niitamo had a duty to keep a proper lookout and to proceed cautiously while
moving through the crosswalk. He did not have the right-of-way. This was not a
case of a motorist making a sudden and unexpected right turn through the
crosswalk. Mr. Niitamo saw the approaching vehicle well in advance. I find that
Mr. Niitamo failed to maintain an adequate lookout while travelling through the
crosswalk and should bear some blame for the accident.

[36]        
Mr. Dobre submits the principles and findings in Niitamo are on
all fours with his case. Perhaps it is more accurate to say on three out of
four legs though, because Niitamo suffered a concussion and his failing to wear
a helmet increased his risk of concussion; whereas Mr. Dobre’s failing to wear
a helmet did result in his suffering any more injury than he did. He submits,
therefore, that given the absence of that apportionment factor, the total
percentage of liability allocated against him should be less than in Niitamo.

[37]        
The defendant questioned the reasoning in Niitamo and suggested
it was inconsistent with Hadden. The plaintiff in Hadden was a
bicycle courier, presumably familiar with his duties as a cyclist. He borrowed
a friend’s bike to go to his work place where he could pick up his pay cheque.
En route, he illegally rode his bike westbound on the north sidewalk of the
major east-west thoroughfare of Lougheed Highway. The next nearest intersection
had dedicated left and right turn lanes onto Westwood Street, plus two through
lanes for Lougheed Highway traffic. Hadden was heading towards Westwood Street,
wanting to cross the intersection where it intersects with Lougheed Highway. He
saw the light ahead was green. He wanted to make the light. He pedalled faster
and rode off the curb at possibly 32 kph. But as he rode off the curb, Hadden
saw the nose of a garbage truck “right there” in front of him, about five feet
from the curb: Hadden, at para. 16. The defendant had stopped his truck in
the dedicated right lane, waiting for the light to turn green. Then, as Hadden,
on the sidewalk to the defendant’s right, approached the sidewalk, the
defendant started his right turn. Chief Justice Bauman found the defendant did
not see Hadden’s approach on the sidewalk to his right and could not be
expected to do so.

[38]        
Bauman C.J. highlighted Hadden’s several contraventions of the Motor
Vehicle Act: riding on the sidewalk (s. 183(2)(a)), riding his bicycle on
the crosswalk (s. 183(2)(b)), and not wearing a helmet (s. 184). He found that
once Hadden chose to ride on the sidewalk, “he took upon himself a heightened
duty to take care and to ensure that he was seen by drivers”: Hadden,
at para. 61.

[39]        
Given my findings, Hadden is clearly distinguishable from the
case at bar. Although Mr. Dobre approached the intersection by riding on the
east side of Southmere, he did not ride off Southmere and onto the crosswalk
without stopping. Before entering the marked crosswalk, he looked left and
right and pushed the button that activated the pedestrian warning lights. He
was pedalling slowly across the intersection, nowhere near the speed of the
plaintiff in Hadden. He was approaching the dividing line of Martin
Drive when the defendant struck the rear wheel of his bicycle. Hadden is
therefore distinguishable on its facts. Even so, the Chief Justice stated a
more general guiding principle that applies equally in this case: once a
cyclist chooses to ride on a sidewalk or crosswalk, they take upon themselves a
heightened duty to ensure drivers see them and to ensure their own safety.

[40]        
Mr. Dobre admitted he had checked left and right only once before
entering the crosswalk. After looking that one time he mistakenly concluded the
defendant, then as far away as 152^nd Street, posed no hazard to him.
It is worth noting Martin Drive curves at its intersection with Southmere;
sometimes a curve can distort a person’s sense of distance. In any case, if Mr.
Dobre had checked again, he would have seen how much further distance the
defendant had travelled since the first time he checked. This would have given
him a more reliable basis to assess the approach of the defendant’s car before
he entered the crosswalk.

[41]        
In the circumstances of this case, particularly Mr. Dobre’s decision to
ride across the intersection crosswalk, which heightened his duty of care, he
either should have waited longer at the curb to ensure the defendant was
responding to the pedestrian warning lights, or at least have more carefully monitored
the defendant’s approach to ensure he could proceed safely. Had he noticed
sooner that the defendant was not reducing her speed, he likely could have
gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across
the intersection, and his resulting heightened duty, required at least those
simple steps to maximize the chances the defendant was noticing him and to
ensure his own safety.

[42]        
That said, Mr. Dobre did not act carelessly and took several steps to
make his presence known to the defendant and to ensure his own safety, all of
which I will consider.

[43]        
I also note that, in my view, Niitamo and Hadden are not
inconsistent. Both are applying, albeit from differing perspectives, the
trite principle that a party’s breach of the law and factual circumstances can heighten
a party’s duty of care. In Niitamo, the judge focused on the heightened
duty of a driver approaching a marked crosswalk. One need not adopt the
statement at para. 22 of Niitamo that a driver approaching a marked
crosswalk must exercise “extreme care” to concur with the gist of the point
that heightened vigilance is expected of a driver approaching a marked crosswalk,
especially one that is so clearly marked by road painting, overhead signs and
flashing lights, once activated. I would simply note here that facts govern the
degree of care expected, and a standard of “extreme care” could apply in some instances.

[44]        
In Hadden, on the other hand, Bauman C.J. was proceeding from the
same root principle, but because of the bicyclist’s unlawful riding on a
sidewalk and crosswalk, imposed on him a heightened duty to make his presence
known to the driver.

[45]        
I turn now to discuss further Mr. Dobre’s accepted theory that he
stopped and activated the pedestrian warning lights before entering the
crosswalk and whether his riding instead of walking the bicycle across the
marked crosswalk calls for some assignment of liability against him.

[46]        
Given the fact that before impact Ms. Lang never saw Mr. Dobre riding
across the intersection, it is unlikely she would have seen him had he chosen
to walk across the intersection instead. But because Mr. Dobre’s failure to
dismount imposed on him a heightened duty to take care for his own personal
safety, as well as to make his presence known to oncoming drivers, his failure
to dismount and walk remains a relevant factor for determining any
apportionment of liability between the parties.

[47]        
By any fair measure, Mr. Dobre did exercise a considerable degree of
care. He stopped at the curb, straddling the bike. He looked west and east. He
saw the defendant well to the east. He mistakenly reasoned she was far enough
away to give him no reason for concern, especially, he thought, with the warning
the flashing lights would give. He mounted the seat. He pedalled across the
intersection slowly. When he saw the defendant at the last moment, he pedalled
a few hard strokes, almost succeeding in removing himself from harm’s way. Apart
from his one glance in either direction before pushing the button, however, he
paid no further regard to Ms. Lang’s approach.

[48]        
 In the case at bar, Mr. Dobre, for the reasons stated, owed a
heightened duty of care. The defendant, for her part, was approaching a
well-marked crosswalk and, in the circumstances, should have been extra
vigilant in maintaining a lookout for those who might be approaching or in the
crosswalk.

[49]        
Considering all the circumstances, I find the apportionment that fairly
reflects the parties’ relative blameworthiness is an 85/15 split in liability,
favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I
now turn.

Damages

Summary

[50]        
Mr. Dobre claims damages for a right thumb Bennett fracture, neck and
back soft tissue injuries, scrapes, and bruises that cleared soon after the
accident.

[51]        
Within a week after the accident, the Bennett fracture required surgery
under anaesthetic. The surgeon inserted two small surgical nails in Mr. Dobre’s
right hand. The nails along with a cast were removed after three weeks. A
splint was then prescribed, which Mr. Dobre, who is right hand dominant,
continues to wear.

[52]        
Mr. Dobre testified recovery of his thumb injury has plateaued. He
intermittently experiences pain and stiffness in the thumb, particularly on
cold days.

[53]        
On January 10, 2011, the date on which Mr. Dobre last saw his family
physician, Dr. S. Petrovich, about his injuries, he continued to complain of
pain in his right thumb that intensified with use of the finger. Dr. Petrovich
wrote the following in his summary:

His fall resulted principally in a right thumb Bennett type
fracture that required open reduction and internal fixation, which was
performed approximately one-week post-injury by Dr. Rodney French. This injury
is quite significant in the fact the patient is right hand dominant. He also
suffered more minor injuries that included abrasions to his forehead and nose,
as well as soft tissue injuries to his cervical and dorsal spine. He required
post-operative use of thumb/hand splint for support of his thumb. These
injuries significantly impaired his activities of daily living, including his
studies as a student, recreational activities, ability to do physical work such
as housework, and impaired his overall dexterity to perform even simple tasks
such as dressing and self hygiene. He was working at Safeway at the time of the
accident but due to his MVA related injuries was deemed completely unemployable
due to loss of dexterity post-operatively. He was prescribed pain killer
medication, and was referred to hand physiotherapy for rehabilitation for
strengthening and range of motion exercises. An MRI taken in March 2011, over
two and a half years post-fracture, revealed the development of degenerative
arthritis to the first metacarpal bone/joint. It is my medical opinion that the
development of degenerative arthritis to his right thumb is directly related to
his MVA. Clinically, his ongoing right thumb pain and stiffness supports this
opinion.

My short-term prognosis of less
than six months is quite favorable regarding the soft tissue injuries to his
back, however, his thumb fracture will likely have a poor prognosis over the
short term. My longer term prognosis of greater than six months is eventual
resolution of his soft tissue injuries, but I anticipate a protracted recovery
and ongoing complaints related to the patient’s permanent right thumb injury. I
anticipate that over time, the degenerative arthritis in his right thumb will
progress and become severe in nature. This likely will be significantly
disabling to the patient in the future as he is right hand dominant. This will
continue to greatly impair his activities of daily living and employability in
a progressive manner.

[54]        
Mr. Dobre’s long term prognosis, which includes concerns relating to
worsening degenerative arthritis in the thumb joint and whether he will require
further surgery, was addressed by Dr. P. Gropper, an orthopaedic surgeon
specializing in hand surgery, and Dr. Arno Smit, the orthopaedic surgeon who examined
Mr. Dobre on three separate occasions after his surgery.

[55]        
In his report dated April 27, 2011, Dr. Gropper commented:

3.         Prognosis

Mr. Dobre has suffered an intraarticular fracture related to
the base of the first metacarpal. There is a suggestion of early localized
arthrosis related to the carpometacarpal joint.

In addition, Mr. Dobre does have clinical evidence of reduced
range of motion and joint tenderness.

As a result of the injuries sustained, I believe Mr. Dobre
does have a probable risk of developing progressive degenerative arthritis
involving the basal joint of the thumb. This would occur slowly and likely
would take many years to become more symptomatic to require an alternate level
of care [emphasis added].

The majority of patients with localized carpometacarpal joint
osteoarthritis requiring joint reconstruction are middle-aged and do not have a
specific history of joint injury. The arthrosis generally occurs in those
patients who appear to have increased ligamentous laxity.

However, because of the intraarticular nature of the fracture
and the current MRI findings, I believe that Mr. Dobre is at probable risk of
degenerative arthrosis occurring within the carpometacarpal joint of his thumb.

I do not believe that there will be an improvement of his
overall mobility and with respect to his motion; he has reached a plateau of
recovery. I do not believe that a further period of supervised rehabilitation
would be beneficial to him in regaining further range of motion.

Mr. Dobre may require a supportive splint for the first
carpometacarpal joint if he was to participate in high performance or
repetitive activities. However, I believe that for computer use or writing, the
splint would likely interfere with his activity.

I do not anticipate that Mr.
Dobre, in his current interest as a history student, would require a specific
career change, although his ultimate career choice has not been fully
identified.

[56]        
On cross-examination, Dr. Gropper explained most candidates for
reconstructive surgery are middle aged and usually have degenerative arthritis
in other joints as well. Age and the presence of degenerative arthritis in
several joints is a more reliable predictor of surgery than the presence of a
previously injured thumb joint.

[57]        
In his report dated May 13, 2011, Dr. A. Smit states the following:

The patient cannot realistically expect any further
improvement with time.

The most appropriate diagnosis is early post-traumatic
osteoarthritis of the right first carpometacarpal joint (base of thumb joint).
The forces transmitted through the joint were sufficient to cause fracture of
the bone. Compressive forces transmitted through the articular cartilage can
lead to death of cartilage cells, particularly in the areas immediately
adjacent to the fracture line. These cartilage cells are unlikely to be
replaced, and localized progressive loss of articular thickness and structural
integrity sets the stage for developing post-traumatic osteoarthritis. In
addition, a light step deformity was present after the closed reduction, which
may lead to a less even distribution of forces across the joint, with greater-than-normal
localized pressures on structurally compromised articular cartilage further
contributing to the development of post-traumatic osteoarthritis, Focal,
established, osteoarthritis, both of the base of the first metacarpal and the trapezium,
has been demonstrated by MRI. This is consistent with the clinical assessment
as well [emphasis added].

Although the current symptoms are relatively limited in
impact, this represents a very serious problem, particularly considering the
patients’ young age and right-handedness. As it stands currently, the patient
experiences difficulty with power pinch and lifting, This will profoundly
restrict his choice of vocation, essentially limiting most, if not all, jobs
requiring use of the right hand for lifting, twisting, manipulation of objects
of even moderate size and weight.

…

The likelihood is high that the patient will develop more
severe symptoms, as related to moderate osteoarthritis, in the next 5-10 years,
given his young age possibly 15 years. This would leave him with much more
profound restrictions in use and increased pain symptoms in late twenties or
early thirties. He can then expect an additional level of decline in function,
related to severe osteoarthritis, in the next 5-10 years. All-in-all, the
likelihood of this patient experiencing profound limitations related to
osteoarthritis of the right thumb in mid-life are high, it would be fair to
estimate this as well over 90%, compared to a baseline risk of perhaps less
than 1% [emphasis added].

It is difficult to overstate the importance of a
well-functioning thumb of the dominant hand. The thumb is crucial for manual
dexterity, due to its large range of motion, including opposition, and its
ability to apply significant force. Forces transmitted through the base of the
thumb are high in relation to its size; dysfunction of the base of thumb joint
is associated with severe, incapacitating pain with attempted use beyond the
impaired thumb’s capacity.

…

Judicious use of the thumb,
avoiding repeated episodes of severe pain and inflammation, may help decrease
the likelihood of accelerated degeneration. As symptoms increase in severity to
moderate or severe, a cascade of supportive measures can be progressively
employed. Most likely, this will initially consist out of a splint to be worn
with activities requiring force to be applied by the thumb. This measure can be
fairly effective at decreasing pain, but this is at the expense of dexterity,
as the range of motion of the thumb will be restricted by the splint.
Nonetheless, many patients find such a splint very helpful. Alternatively or in
addition, periodic injection of the base joint, typically with a corticosteroid
injection, can help decrease inflammation and pain, initially often for
prolonged periods of time, i.e. 6 months or more. This does not stop the
degenerative process.

[58]        
While there are some discernible slight divergences between the opinions
of Dr. Gropper and Dr. Smit, in substance they are not large ones. I accept
that within the span of 15 years Mr. Dobre will experience some worsening of
his degenerative arthritis that carries with it a risk that by middle age it could
become severe and accompanied by a corresponding decline in function. There is
also a chance Mr. Dobre could make his way into his middle age years without
experiencing a significant decline in function, but the chances are greater
that he will do so by then. While confident predictions about his needing future
surgery are not possible, given the early onset of degenerative changes and the
nature of his fracture, there is at least some risk he will require future
surgery with doubtful benefit.

[59]        
Mr. Dobre feels dull intermittent pain at the base of his thumb, where
the surgical nails were inserted. Moreover, his grip is weaker and his thumb is
stiff. Prolonged grabbing and pulling brings the rapid onset of piercing pain.
Prolonged writing causes discomfort and his thumb discomfort bothers him when
he is writing university exams. In his part time job as a librarian, he finds
he cannot hold many books when sorting them throughout the library. Due to his
injury, he has to hold the books in an awkward position to avoid stressing the
thumb.

[60]        
At the time of trial, Mr. Dobre still performs exercises for his thumb
injury prescribed to him by the White Rock Orthopaedic & Sports
Physiotherapy Clinic.

Affect on activities

[61]        
Mr. Dobre was physically active in the summer of 2008. He had no
physical problems before the accident. He played a mix of recreational tennis,
basketball and soccer. He played tennis about once a week. Since the accident, he
found that due to his weak grip and discomfort he could not play.

[62]        
He used to play basketball with a friend twice a week. He also tried
playing basketball after the accident but it caused too much soreness in his
thumb.

[63]        
He weight trained a few times a week at South Surrey Recreation Centre.
He tried returning to weight training after his injury but experienced “great
difficulty”. He could perform lower body exercises after the accident, but I
suppose setting up equipment for those would require him to move or adjust
plates with his hands. Mr. Dobre will obviously need to concentrate on lower
body fitness, which will still bring him considerable health benefits. Four
sessions with a kinesiologist should help Mr. Dobre find, to some extent,
weight training strategies that would allow him to work around his disability.

[64]        
Soccer is the last in Mr. Dobre’s list of physical activities. He
continues to play soccer since the accident but does so “cautiously”.

Future earning capacity

[65]        
Mr. Dobre majors in English and Philosophy at UBC. He is considering a
career as a librarian or lawyer. In his two university years so far, his
university grades are mostly B’s. These are not yet high enough for admission
to the law school at UBC. If Mr. Dobre does not gain admission to law school,
and decides he is not interested in a career as a librarian, he is also
interested in pursuing an academic career, perhaps in history. All that said,
he remains unsure about his future career at this time.

[66]        
With respect to Mr. Dobre’s future earning capacity, the defendant
points out Mr. Dobre is an excellent student who is focused on an academic
career and has never considered a construction job or any other kind of work
that will entail significant stress on his right thumb.

[67]        
Mr. Dobre agrees he will likely work in a white-collar career but
submits it is too early to predict his career and the impact of his disability
on his earning capacity. He relies on medical evidence to argue his disability
is permanent and will likely worsen over time and consequently limit his career
options. He relies on Crane v. Lee, 2011 BCSC 898 [Crane], in
which the plaintiff was awarded $70,000 for lost earning capacity, and
Raun v. Suran, 2010 BCSC 793 [Raun], in which the plaintiff received
$75,000 under the same head of damages. Mr. Dobre submits his injuries are
worse than those seen in Crane and Raun and, considering his long
remaining working life and the number of occupations now closed to him as a
result of the accident, an award for loss of earning capacity should lie in the
range of $100,000.

[68]        
On the other hand, the defendant submits that, given Mr. Dobre’s
aptitudes and his focus on a sedentary academic or legal career which is unlikely
to stress his right thumb joint, any award for lost earning capacity, if found
warranted, should not exceed $20,000.

[69]        
Many cases have commented on the evidentiary problems involved in issuing
awards for loss of earning capacity in the case of a young person with no set
pattern of earnings from prior employment. I note at this point that because
Mr. Dobre could not continue working after the accident as an assistant baker
at Safeway due to his disability, he has already suffered a loss of income. At
his current part time job at the Surrey Public Library, he finds carrying
armloads of books, a task that librarians often must do, awkward. Jobs in
construction or any other type of work involving even moderate lifting or
prolonged grabbing or pulling are not feasible for him due to his disability.
Many of the temporary jobs available to young post secondary students require
lifting, carrying, pulling, pushing, grabbing and gripping objects. These are
sometimes the most remunerative type of jobs as well. In the short term, as Mr.
Dobre works towards completion of his post-secondary education, there is a
substantial possibility he will experience a loss of earnings because his
disability has closed off many potential summer and part time jobs for which he
would otherwise be eligible. The job he lost at Safeway after the accident is a
clear example of this lost potential.

[70]        
As for the longer term, I agree that looking to Mr. Dobre’s future from
where he now stands, it is not likely Mr. Dobre will direct himself towards a
career that will place untenable stress on his right thumb joint. It is true
the lives and careers of many people follow a path that deviates little from
their youthful goals and aspirations. But it is also true that life, especially
for young students, presents experiences and opportunities that can stimulate
new interests and set them on different and unexpected paths. Lawyers sometimes
lose interest in practicing law and decide to become police officers. An
English major may find watching whales stimulates a passion for marine biology
and switch to study in this field. A political science student studying ways to
foster development in economically underdeveloped regions may want to work with
a development agency that requires hands-on participation in their development projects.
I mention these purely hypothetical examples only to illustrate and underline
the point that while it is true Mr. Dobre is, at this time, strongly inclined
to pursue an academic career, his educational and life experiences could
stimulate an interest in a field where a poorly functioning right thumb places
him at a competitive disadvantage. This consideration is particularly important
in light of the central role opposable thumbs play in so many facets of human
activity, even somewhat sedentary ones.

[71]        
Unbounded crystal ball speculations are obviously not the legal basis
for an award intended to compensate for lost earning capacity. Recognizing,
however, a young person’s full potential and the fact that the period over
which he or she might experience income loss “is a long one” (Crane, at
para. 44), a judge should be cautious so as not to minimize the wide range
of economic changes, new interests and lost opportunities that can present
themselves over the roughly 40 year working life of a young plaintiff, such as Mr.
Dobre. He, moreover, could face, through the progressive worsening of
degenerative arthritis in the joint, profound limitations in the use of his
right hand.

[72]        
The law requires a principled approach in assessing a plaintiff’s loss
of earning capacity. The evidence must show a real and substantial possibility
of income loss in the future: Perren v. Lalari, 2010 BCCA 140, 3
B.C.L.R. (5^th) 303 [Perren] at para. 32. In a case of a young
person such as Mr. Dobre, this test can be applied with a view as much to the nature
and long-term effects of the injury, and their as yet unrealized potential and
undiscovered career opportunities, as to their brief work history and most
current career interests and opportunities. I see this statement as harmonic
with Perren and other well-established guiding principles for assessment
of loss of earning capacity for young plaintiffs such as Mr. Dobre.

[73]        
I find Mr. Dobre has been rendered less capable overall from earning
income from all types of employment; he is less marketable and attractive as an
employee to potential employers offering positions that require moderate weight
lifting, repetitive lifting, grabbing, pulling and gripping. As noted
previously, these job activities are most obviously relevant to Mr. Dobre’s inability
to secure part-time employment during his post secondary years. Nonetheless, he
has lost the opportunity, in the long term as well, to take advantage of all
job opportunities that would require unrestricted use of a fully articulating dominant
hand thumb, and he is therefore less capable of earning income in such fields: Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393, 6 B.C.A.C. 314 (C.A.).

[74]        
Given his scholarly inclinations and success, Mr. Dobre will most likely
pursue an academic or professional career. But considering the nature of his
injury and allowing for the full range of careers he could pursue, there remains
a real and substantial possibility he will, because of the nature of his
injury, lose income in the future. Given the relative strength of his academic
leanings however, it is reasonable to foresee those losses as somewhat moderate
ones. I see the range proposed by Mr. Dobre to be too high. But the defendant’s
suggestion that the award should exceed no more than $20,000, if damages for
loss of earning capacity are awarded at all, gives no account to the importance
of a healthy articulating thumb joint for so many activities, or to Mr. Dobre’s
prospect of facing much increased limitations in the future, including those
that would stem from the debilitating effects of his pain, and the other considerations
I have just discussed. I find $60,000 for loss of earning capacity in relation
to Mr. Dobre’s right thumb joint injury is a reasonable award.

Loss of past income

[75]        
Mr. Dobre worked as a baker’s assistant at Safeway before the accident. Because
of his right thumb joint injury, he had to give up his job. His decision is
medically supported and the defendant does not contest this.

[76]        
Mr. Dobre claims damages for past loss of income in the amount of
$6,562.50. This claim is based on the loss of his Safeway job for 50 weeks,
calculated from the date of the accident with an average of 15 hours per week
earning $8.75 an hour.

[77]        
Mr. Dobre found another job in October 2008, working five hours weekly
for $14 an hour at Surrey Public Library. He says that because he liked books
and his work at the library, and because he needed the money, he would have
continued working at Safeway as well. I am not satisfied however, that had Mr.
Dobre not been injured, and therefore been able to continue at Safeway, he
would have applied for the position at the library.

[78]        
The defendant submits that because Mr. Dobre failed to mitigate his
damages by finding alternative minimum wage work, his wage loss should be set
at a gross amount of $1,575.00, not the $6,562.50 that is claimed. Mr. Dobre
explained he could not work at McDonalds, where he had worked before, because
he would have to lift boxes and handle spatulas, activities he felt sure he would
not be able to handle with his injured right thumb joint. He also unsuccessfully
applied for a clerk position with City of Surrey public works department.

[79]        
I note Mr. Dobre continued in recovery mode for several months after the
accident. By Christmas 2008, he was still experiencing pain and stiffness every
day. By June 2009, he had seen improvement, but experienced pain when writing
his university exams. In my view, Mr. Dobre was doing about as well as one
should reasonably expect in terms of his ability to work until about the summer
of 2009. His thumb joint disability limited his ability to perform jobs
requiring repetitive lifting, grabbing, gripping and pulling, which ruled out a
significant number of part-time jobs. Given his low seniority at the library,
he found it hard to get more shifts, although he did receive a few additional
shifts on top of his regular five hours a week.

[80]        
All factors considered, however, I find Mr. Dobre could have tried
harder to find alternative/additional minimum wage employment from July 2009
onwards. He could have at least tried some shifts at McDonalds, where he had
worked previously and requested some modifications to his workplace activities.
He could have applied for retail or other positions that did not stress his
thumb joint. Despite these factors, I note that Mr. Dobre did well at Safeway
as an assistant baker; this was a perfect part-time position for him before the
accident and I accept it would not be that easy to find a suitable replacement
position. The defendant said there was no proof the Safeway position would
still be available to him the following year, but I have no evidence suggesting
it was in jeopardy either.

[81]        
The plaintiff claims past income loss from July 14, 2008 (the date of
the accident) to June 29, 2009, a period of 50 weeks. I have found Mr. Dobre
failed to mitigate his damages for lost income from July 2009 onwards.  Given
that this date falls outside the period over which the plaintiff claims damages
for lost income, there is no basis to reduce the plaintiff’s award for past
income loss on account of the plaintiff’s failure to mitigate in relation to this
head of damages.

[82]        
From the date of the accident until Mr. Dobre starting working at the
library in October 2008, a period in which he did not work at all, his damages
for income loss amount to $1,575.00 (12 weeks x 15 hours per week x $8.75/hr).

[83]        
For the remaining 38 weeks claimed by the plaintiff for income loss, I
have factored in the five hours per week at $14.00/hr Mr. Dobre worked at the
library because I found Mr. Dobre would not have worked at Safeway and the
library at the same time if the accident had not occurred. Therefore, once Mr.
Dobre started working at the library, his weekly loss of income became $61.25. Over
the course of the following 38 weeks, Mr. Dobre suffered $2,327.50 in income
loss.

[84]        
After combining these two amounts ($1,575.00 + $2,327.50), the plaintiff
is entitled to an award for past income loss in the amount of $3,902.50.

[85]        
I award Mr. Dobre $3,902.25 for his past loss of income.

Special damages

[86]        
I award special damages of $640 as agreed to by the parties.

Loss of homemaking capacity and future treatment costs

[87]        
When the family last moved houses, Mr. Dobre could not help his parents
move the heavy objects. His limited grip strength and stiffness, combined with
pain brought on by prolonged pulling and grabbing, will continue to limit him.
In the future, he likely will have to call more often on movers and other types
of help to complete outdoor obligations than would a person with a fully
functioning right thumb, especially considering his right-handed dominance. He
will therefore incur future expenses relating to home and yard maintenance and
moving, which he might have avoided but for his right thumb disability.

[88]        
As Mr. Dobre’s pain and disability worsens in coming years, he will
likely require prescription medication for treatment. He will also need new
splints from time to time. Although the medical evidence reveals that future
treatment options are somewhat limited for Mr. Dobre, he will likely want to
pursue some of those available to him.

[89]        
Neither the costs of potential homemaking/maintenance nor future treatment
costs were assessed or calculated at trial, but the medical evidence clearly warrants
some allowance for each. I award $5,000 for loss of homemaking/maintenance
capacity and $2,000 for future treatment costs. The $5,000 award for loss of
home making/maintenance capacity will form part of the award for non-pecuniary
damages, to which I now turn.

Non-pecuniary damages

[90]        
Mr. Dobre relied on Leduc v. Toth, [1997] B.C.J. No. 110, 68
A.C.W.S. (3d) 447 (S.C.) [Leduc], in which the plaintiff received $53,000
for non-pecuniary damages after inflation, and Tsougrianis v. Marello,
[1998] B.C.J. No. 2087, 82 A.C.W.S. (3d) 293 (S.C.) [Tsougrianis], in
which the plaintiff received $66,000 after inflation. Counsel for the defendant
also relied on Leduc for the purpose of determining non-pecuniary
damages in this case.

[91]        
I agree with counsel for the plaintiff that Mr. Dobre’s injuries appear more
serious than those in Leduc. In addition to soft tissue injuries and a
left foot fracture which healed quickly after the accident, the 41 year old plaintiff
in Leduc suffered a right hand fracture which affected his gripping
strength and the function of his hand but did not require surgery. Approximately
two and a half years after the accident, a hand specialist concluded the
plaintiff had a “permanent minor deformity” which “should not disrupt … hand
function significantly”: Leduc, at para. 10. The medical evidence in this
case reveals Mr. Dobre’s thumb injury will have a significant impact on the
function of his right hand moving forward and will translate into arthritis as
he ages.  I note that in Leduc there was no discussion of the plaintiff
suffering arthritis or the prospect of degenerative arthritis arising in the
future.

[92]        
I find Mr. Dobre’s injuries are more akin to those in Tsougrianis,
in which the 22 year old plaintiff suffered fractures to both thumbs, one of
which required surgery, soft tissue injuries to her neck and back, and
tendonitis.  The Court found the soft tissue injuries and tendonitis would heal
within a year of the trial.  With respect to the thumb injuries, the Court
found the plaintiff’s right thumb injury had largely resolved itself by trial
and there was “not a substantial possibility” the left thumb injury was a permanent
functional disability: Tsougrianis, at para. 35.  Furthermore, the Court
found the plaintiff’s pain, strength and gripping difficulties in the left
thumb would eventually disappear with exercise and further surgery, with the
exception of “fine precision” handiwork: Tsougrianis, at para. 36. This
is not the case for Mr. Dobre.   Given the permanence of Mr. Dobre’s right
thumb disability and the likely onset of arthritis, his injuries, all factors
considered, appear somewhat worse than those of the plaintiff in Tsougrianis.

[93]        
I find an award of $70,000 for non-pecuniary damages is appropriate in
the circumstances if the $5,000 assessed for loss of home making/maintenance
capacity is included in that amount. I therefore award $70,000 for non-pecuniary
damages, an amount that includes a specific segment of $5,000 for loss of home making/maintenance
capacity.

Conclusion

[94]        
In the result, I award the plaintiff the following:

·      
Loss of future earning capacity:                                         $60,000.00

·      
Loss of past income:                                                             3,902.25

·      
Special Damages:                                                                    640.00

·      
Cost of future care:                                                             $2,000.00

·      
Non pecuniary damages

(inclusive of
the $5,000 award for loss of

home making/maintenance
capacity):                                 $70,000.00

·      
Total:                                                                              $136,542.25

This amount shall be reduced by 15% to reflect the
plaintiff’s portion of liability in this case. Therefore, the plaintiff is
awarded a grand total of $116,060.91.

[95]        
The plaintiff is entitled to the set off between 85% of his taxable costs
at Scale B and the defendant’s 15% of her taxable costs at Scale B, unless
counsel need to speak to matters of which I am unaware. He will recover all his
taxable disbursements.

“N. Brown J.”